The dividing line between those who are creeped out by the National Security Agency's surveillance of phone calls and Internet communications and those who are cool with it comes down to a simple question: Do you trust the federal government not to misuse its power?

Libertarians like myself, as well as ACLU-type civil libertarians, generally don't. Some liberals do, at least as long as someone like Barack Obama is in the Oval Office. Some conservatives feel the same way, but only when Republicans control the White House. Former federal prosecutor Andrew McCarthy, writing in National Review Online, argues, "The problem here is not government power. It is the government officials we’ve elected to wield it."

I think he has it backward. It's guaranteed that any government power will sooner or later wind up in the hands of the "wrong" people or party. So it's essential to restrict that authority -- or else not grant it at all. Otherwise, we are inviting intolerable abuses.

James Madison understood all this, which is why he favored sturdy checks and balances to keep power under control. "If men were angels, no government would be necessary," he wrote in The Federalist papers. "If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself."

The problem with existing counter-terrorism laws is that those checks have been neutralized. Congress seems to have had only a dim idea what the NSA was doing, and the Foreign Intelligence Surveillance Court that approves such programs operates in secret, without hearing the side of anyone who might oppose broad monitoring of citizens.

Without effective checks on executive power, we're dependent on the people in the White House to control themselves. The experience with George W. Bush and Barack Obama suggests that's a losing bet. Madison wouldn't be surprised.